For
the past seventy-five years Congress has transferred to the federal
regulatory agencies the power to govern (to legislate, to prosecute,
and to adjudicate). The Constitution vests the power to make law in
Congress, the power to execute the laws in the Executive, and the power
to adjudicate alleged violations of the law in the Judiciary. By this
massive transfer of governing power from the elected to some 220 unelected
agencies of the federal government, the United States has replaced its
constitutional republic with a bureaucratic oligarchy.

The
Founding Fathers revered the French Enlightenment philosopher Montesquieu.
In particular, they adopted the view expressed in his Spirit of the
Laws (1748) that whenever government combines legislative, executive,
and judicial powers in single hands, that produces tyranny in service
of the selfish ambitions of men. In his Thoughts on Government
(1776), John Adams explained that “a single assembly possessed
of all the powers of government would make arbitrary laws for their
own interest, execute all laws arbitrarily for their own interest, and
adjudge all controversies in their own favor.” James Madison concurred:
“The accumulation of all powers, legislative, executive, and judicial,
in the same hands, whether of one, a few, or many, and whether hereditary,
self-appointed, or elective, may justly be pronounced the very definition
of tyranny.”

It
should come as no surprise to us, then, that the rule of law is so readily
ignored by the unelected heads of the federal agencies when it interferes
with their political objectives. When Congress enacts new law to alter
the chosen course of an agency, often the agency blithely ignores the
statute and proceeds with its own regulatory agenda. That lawlessness
frequently encounters little resistance. Even when challenged, the action
is ordinarily upheld unless the federal court makes a rare finding that
the statute is unambiguous in every material particular and that the
agency interpretation is patently unreasonable. In most instances, the
federal court finds the statute ambiguous in some material respect and
then defers to the agency’s interpretation of it so long as there
is some conceivable way to hold the rule in question intelligible.

In
short, the rule of the regulators is almighty, unavoidable, and largely
determinative regardless what the Congress does, the President thinks,
or the courts rule. Indeed, in those rare instances when federal courts
do hold an agency action unlawful (either as a violation of the Constitution,
the agency’s enabling statute, or a violation of the Administrative
Procedure Act because it is arbitrary and capricious), the agency ordinarily
either ignores the decision entirely, makes an anemic gesture at compliance,
or circumvents the decision by issuing new regulations that bring about
the very same regulatory end.

Years
ago the United States Court of Appeals for the D.C. Circuit held the
cable “must carry” rules unconstitutional. The Federal Communications
Commission simply rewrote the rules to require cable systems to negotiate
a yearly payment to broadcasters if they failed to carry broadcast signals
on their first tier of programming. The economics went in the other
direction. The broadcasters wanted access to the first tier and the
cable companies were desirous of eliminating that access for all except
highly popular broadcasters. Under the “must carry” rules
FCC demanded carriage on the argument that free over the air television
was a public interest necessity (as if there were not a plethora of
comparable content on the cable systems) and that local programming
was of public interest importance. The D.C. Circuit held the confiscatory
action of the FCC unconstitutional under the First Amendment. Undaunted,
FCC just rewrote the rule to effect the same result but on different
grounds. That latter rule, with us to this day, was upheld as constitutional
by the D.C. Circuit.

In
response to an overwhelming public demand that the Food and Drug Administration
cease its efforts to restrict the availability of dietary supplements
in the market and end its censorship of scientific information concerning
them, Congress passed the Dietary Supplement Health and Education Act.
As Former FDA Chief Counsel and Harvard Law professor Peter Barton Hutt
explained, FDA Commissioner David Kessler refused to implement the law.
“Kessler was so infuriated by the enactment of DSHEA . . . that
he ordered FDA not to enforce the new law . . . . Kessler was convinced
if the law was not enforced and the worst elements of the dietary supplement
industry were allowed to run wild, Congress would repeal the law.”

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One
part of the DSHEA prohibited FDA from classifying as labeling peer reviewed
scientific literature. The intent was to permit that literature to enter
the commercial marketplace so that consumers could be edified concerning
disease risk reduction and treatment effects of nutrients in foods and
supplements. FDA loathed that provision. A captive of the pharmaceutical
industry, FDA feverishly regulates to prevent nutrient-disease information
from reaching the public so the public regards FDA approved drugs as
the only means to treat disease. Although the plain and intended purpose
of the section was to liberate scientific literature so it could reach
consumers, the FDA decided to circumvent the law. The FDA explained
to regulatees that even if scientific literature containing nutrient-disease
information were to satisfy the requirements of the statute for exemption
from labeling, the FDA would still prosecute any company that distributed
it and also sold a nutrient mentioned in the literature. It would do
so on a different legal theory. The FDA decided that distribution of
the science to consumers was “evidence of an intent to sell a
drug.” In other words, even if the statutory exemption applied,
FDA would block the information from reaching the public on the theory
that the nutrient-disease content revealed an intent on the part of
the manufacturer to sell the nutrient as a drug, thus making the nutrient
an illegal unapproved new drug by operation of law.

After
meeting with drug lobbyists for the makers of Sudafed and Primatene
Mist, Drug Enforcement Administration Administrator Michele M. Leonhart
changed her original position favoring elimination of all ephedrine
and pseudoephedrine containing cough and cold remedies from the market
and decided to eliminate all except Sudafed and Primatene Mist. She
embarked on a campaign to revoke the licenses of independent distributors
of competing brands that continues to this day. Over sixty companies
have had their DEA licenses revoked since the start of this campaign.
The Controlled Substances Act called on her to set a national quota
for importation of ephedrine to mirror legitimate demand. Relying on
a biased expert who lacked a Ph.D. in any subject, including statistics,
she adopted statistical reports drafted by that person which supported
the statistically and intellectually indefensible position that any
sale of ephedrine or pseudoephedrine containing cough and cold remedies
beyond approximately $14 a week from any convenience store in the U.S.
was illegitimate (meaning, it necessarily would be diverted to use in
the making of methamphetamines). She also set the ephedrine national
quotas based on this same kind of illogical reasoning so that they would
enable the makers of Sudafed and Primatene Mist to remain in business
but would choke the supply of ephedrine to their competitors. Although
her actions were contrary to any good faith interpretation of the statute,
she proceeds in this way because it furthers her own interest.

These
are but a few examples of the abuses that commonly take place in the
all powerful regulatory agencies. The abuses are almost never checked
by the actions of the President, the federal courts, or the Congress.
They go on year after year and the failure to force legal compliance
leads to an arrogance of power within the agencies that is equivalent
to that once inspired absolute monarchs to deprive people of their rights.
It brings to my mind that marvelous poem entitled “Authority”
by the Victorian author and poet Samuel Butler (1835-1902):

Authority
intoxicates,
And makes mere sots of magistrates;
The fumes of it invade the brain,
And make men giddy, proud, and vain;
By this the fool commands the wise,
The noble with the base complies,
The sot assumes the rule of wit,
And cowards make the brave submit.

The
rule of law essential for the preservation of freedom and justice has
no sure footing in the federal regulatory agencies. It exists only if
it supports the objectives of the agency heads. The bureaucratic state
has introduced an authoritarianism antithetical to the Founders’
republic. The common method of regulation, prior restraint, violates
the liberties of all regulatees on the supposition that a course of
action may invite choices that disserve regulatory objectives (despite
the fact that the course may also invite choices that do not). The overall
effect is to limit opportunity, increase cost, and disserve competition.
The common method of agency adjudication is before administrative law
judges within the agencies who view their power as limited by the enabling
statutes, regulations, and policy determinations of the agency. Consequently,
if a party challenges a regulation as unlawful either because it conflicts
with a statute or with the Constitution, the administrative law judges
ordinarily either deny the challenge on the merits or refuse to entertain
it.

Moreover,
administrative “courts” ordinarily permit the government
to introduce any evidence desired, regardless of its relevance, prejudicial
effect, or probative value. Contrariwise, they often restrict the admissibility
of evidence from regulatees. Administrative “courts” often
prohibit discovery against the government agency yet permit virtually
unlimited discovery of the regulatee by the agency. In short, administrative
law greatly favors the administrative state. Appeals from administrative
proceedings to the federal courts ordinarily may not include content
excluded before the agency. Consequently, the agency’s restrictions
on admissible evidence lock the regulatee into an evidentiary universe
that favors the agency.

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We
will never restore the Founders’ republic and the rule of law
in America until we humble the administrative state, reducing it to
the role of a mere ministerial functionary to enforce the laws of Congress
and the rightful execution of the laws by the President. In the first
instance, we must end the delegation of governing power from Congress
to the agencies. In the second, we must cause all regulations not approved
by Congress in the way in which the Constitution designates for the
making of law to be rendered void. In the third, we must limit the agencies
to enforcing the law, denying them rulemaking authority. In the fourth,
we must eliminate the administrative courts, ensuring that all are tried
before an independent judiciary. Without the foregoing reductions in
the administrative state, we will not be able to resurrect our Constitution
of liberty, civil liberties will increasingly vanish, and we will not
be able to liberate the market to achieve new heights of industry and
improvement.

Jonathan W. Emord
is an attorney who practices constitutional and administrative law before
the federal courts and agencies. Congressman Ron Paul calls Jonathan “a
hero of the health freedom revolution” and says “all freedom-loving
Americans are in [his] debt . . . for his courtroom [victories] on behalf
of health freedom.” He has defeated the FDA in federal court a remarkable
eight times, six on First Amendment grounds, and is the author
of Amazon bestsellers The
Rise of Tyranny, and Global
Censorship of Health Information. He
is also the American Justice columnist for U.S.A. Today Magazine. For
more info visit Emord.com.

These are but a few
examples of the abuses that commonly take place in the all powerful regulatory
agencies. The abuses are almost never checked by the actions of the President,
the federal courts, or the Congress.